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9.23 Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Excessive (Deadly and Nondeadly) Force

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This chapter is being reviewed in light of comments solicited by the Committee from the public.


In general, a seizure of a person is unreasonable under the Fourth Amendment if a police officer uses excessive force [in making a lawful arrest] [and] [or] [in defending [himself] [herself] [others]. Thus, in order to prove an unreasonable seizure in this case, the plaintiff must prove by a preponderance of the evidence that the officer[s] used excessive force when [insert factual basis of claim].

Under the Fourth Amendment, a police officer may only use such force as is "objectively reasonable" under all of the circumstances. You must judge the reasonableness of a particular use of force from the perspective of a reasonable officer on the scene and not with the 20/20 vision of hindsight. An officer’s intent or motive is not relevant to your inquiry.

In determining whether the officer used excessive force in this case, consider all of the circumstances known to the officer on the scene, including:

1. the severity of the crime or other circumstances to which the officer[s] [was] [were] responding;

2. whether the plaintiff posed an immediate threat to the safety of the officer[s] or to others;

3. whether the plaintiff was actively resisting arrest or attempting to evade arrest by flight;

4. the amount of time and any changing circumstances during which the officer had to determine the type and amount of force that appeared to be necessary;

5. the type and amount of force used;

[6. the availability of alternative methods [to take the plaintiff into custody] [to subdue the plaintiff;]

[7. the number of lives at risk (motorists, pedestrians, police officers) and the parties’ relative culpability, i.e.,which party created the dangerous situation, and which party is more innocent;]

[8. whether it was practical for the officer[s] to give warning of the imminent use of force, and whether such warning was given;]

[9. whether the officer[s] [was] [were] responding to a domestic violence disturbance;]

[10. whether it should have been apparent to the officer[s] that the person [he] [she] [they] used force against was emotionally disturbed;]

[11. whether a reasonable officer would have or should have accurately perceived a mistaken fact;]

[12. other factors particular to the case.]



 Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8 and in conjunction with Instruction 9.19 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Generally).

 In general, all claims of excessive force, whether deadly or not, should be analyzed under the objective reasonableness standard of the Fourth Amendment as applied in Scott v. Harris, 550U.S. 372 (2007), Graham v. Connor, 490 U.S. 386, 397 (1989), Tennessee v. Garner, 471 U.S. 1 (1985), and Acosta v. Hill, 504 F.3d 1323 (9th Cir.2007). Although an officer may not use deadly force to apprehend a suspect when the suspect poses no immediate threat to the officer or others, "it is not constitutionally unreasonable to prevent escape using deadly force ‘[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.’" Wilkinson v. Torres, 610 F.3d 546, 551 (9th Cir.2010) (quoting Garner, 471 U.S. at 11). Whether the use of deadly force is reasonable is highly fact-specific. Id.

In assessing reasonableness, the court should give "careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396 . . . "The ‘reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. (citation omitted). In addition, "[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation." Id. at 396–97.


Moreover, as the Ninth Circuit has noted, the Supreme Court did not limit the reasonableness inquiry to the factors set forth in Graham

Because the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application," the reasonableness of a seizure must instead be assessed by carefully considering the objective facts and circumstances that confronted the arresting officers. In some cases, for example, the availability of alternative methods of capturing or subduing a suspect may be a factor to consider.

 Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir.2005) (citations omitted). 

On the other hand, it is not error for a trial court to decline to instruct explicitly on the availability of "alternative courses of action" when the instructions as a whole "fairly and adequately cover[ed] the issues presented." Brewer v. City of Napa, 210 F.3d 1093, 1096-97 (9th Cir.2000).

 Other relevant factors may include whether proper warnings were given and whether it should have been apparent to officers that the person they used force against was emotionally disturbed. Glenn v. Wash. Cnty., 673 F.3d 864, 872 (9th Cir.2011); see also Deorle v. Rutherford, 272 F.3d 1272, 1283 (9th Cir.2001) ("Even when an emotionally disturbed individual is ‘acting out’ and inviting officers to use deadly force to subdue him, the governmental interest in using such force is diminished by the fact that the officers are confronted, not with a person who has committed a serious crime against others, but with a mentally ill individual.")

 "When an officer’s particular use of force is based on a mistake of fact, we ask whether a reasonable officer would have or should have accurately perceived that fact." Torres v. City of Madera, 648 F.3d 1110, 1124 (9th Cir.2011), (citing Jensen v. City of Oxnard, 145 F.3d 1078, 1086 (9th Cir.1998) (emphasis in original). "[W]hether the mistake was an honest one is not the concern, only whether it was a reasonable one." Id. at 1127 (emphasis in original).

 The "relative culpability" of the parties i.e., which party created the dangerous situation and which party is more innocent, may also be considered in determining the reasonableness of the force used. Espinosa v. City & Cnty. of S.F., 598 F.3d 528, 537 (9th Cir.2010) (citing Scott, 550 U.S. at 384).

 Whether the officers are facing or expecting a domestic disturbance is a specific factor relevant to the totality of the circumstances in assessing an excessive force claim. George v. Morris, 736 F.3d 829, 839 (9th Cir.2013). Some domestic violence calls may pose serious threats to officers, while other calls may not present such risks. Thomas v. Dillard, 818 F.3d 864, 879-80 (9th Cir.2016). Officers must consider the specific circumstances of a domestic violence encounter to justify a seizure. Id.

 "[O]nce a seizure has occurred, it continues throughout the time the arrestee is in the custody of the arresting officers." Torres v. City of Madera,524 F.3d 1053, 1056 (9th Cir.2008) (citations omitted).

 Whether law enforcement officers rely on the emergency aid or exigent circumstances exceptions to the Fourth Amendment’s general warrant requirement, officers are required to conduct the search or seizure in a reasonable manner, including use of reasonable force. Sheehan v. City & Cnty. of S.F., 743 F.3d 1211, 1222 (9th Cir.2014) (applying Supreme Court’s excessive force standard under Fourth Amendment to both emergency and exigency exceptions).

 A police officer’s attempt to "terminate a dangerous high-speed chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury of death." Plumhoff v. Rickard, 134 S. Ct. 2012, 2021-22 (2014) ("if officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended") (citations omitted).